The Law Association of Zambia (LAZ) has said that the Director of Public Prosecution(DPP)’s- mandate does not extend to sanction who or whom to arrest and re-arrest.
LAZ Honorary Secretary Sokwani Chilembo however said that the DPP has exclusive power to undertake and institute criminal prosecution before any court of law.
Mr. Chilembo cited article 180 of the Amended 2016 Constitution as read with Section 8 of the National Prosecution Authority -Act of 2010, adding that LAZ expects the office of the DPP and law enforcement agencies to collaborate on matters falling within their jurisdiction.
Mr. Chilembo said that the DPP’s office and investigative wings are critical to good governance and administration of justice.
He has described as unfortunate the leakage of a letter allegedly written by the DPP to the Drug Enforcement Commission (DEC) questioning the re-arrest of former Konkola Copper Mine(KCM) Provisional Liquidator Milimo Lungu.
Below is the full statement
PRESS RELEASE BY THE LAW ASSOCIATION OF ZAMBIA APPARENT OVERLAPPING MANDATES BETWEEN THE OFFICE OF DIRECTOR OF PUBLIC PROSECUTIONS AND THE DRUG ENFORCEMENT COMMISSION IN CRIMINAL PROSECUTIONS
The Law Association of Zambia has taken an interest in the matter concerning the apparent overlapping mandates between the office of Director of Public Prosecutions (DPP) and the Drug Enforcement Commission (DEC).
Both are critical institutions of administration of justice and good governance in the country, in so far as the conduct of criminal proceedings is concerned.
This Press Release is anchored on the backdrop of a confidential letter from the DPP to the DEC Director General, which letter was leaked, a practice that LAZ finds very unfortunate.
Be that as it may, in the said letter, it is alleged that DEC’s action to re-arrest Mr. Milingo Lungu, on same or similar charges, without any instructions from the DPP, following the DPP’s exercise of her Constitutional powers to enter a nolle prosequi, is unconstitutional.
While LAZ expects and encourages the office of the DPP and DEC or indeed any law enforcement agencies to collaborate in matters falling within their respective legal mandates, the law is categorical in so far as the parameters of their regulatory mandates are concerned.
It is LAZ’s view that provisions of Article 180 of the Constitution (Amendment) Act, 2016 as read with Section 8 of the National Prosecutions Authority Act, 2010, make it clear that the DPP has exclusive powers in “instituting and undertaking criminal prosecutions before any court of law.”
However, this exclusive mandate of the DPP does not extend to directing or instructing when, who and why to arrest or re-arrest any suspect by DEC or any other law enforcement agency in the exercise of their legal mandate, before or after a nolle prosequi has been entered.
LAZ has since shared this position with the Attorney General and the respective offices to address the situation, for good order, promotion of the rule of law and entrenching democratic principles in the country.
Dated this 12th day of April, 2022.
Sokwani Peter Chilembo
HONORARY SECRETARY
The only sound advice is that the 2 offices should work together. Indeed if DEC had misgivings about nolle entered by the DPP, she should have engaged the latter to find out what was amiss in the docket. Otherwise did she expect the DPP to go back to Court with the accused on the same facts and grounds? LAZ isn’t a Court and their opinion can be challenged. Perhaps LAZ can take the matter to the ConCourt for interpretation because Siyuni’s position has many precedents. We know that the 2016 Constitution was passed and signed in a drunken stupor by the PF, so it doesn’t make much sense
We wait for DPP to instruct us to start criminal prosecution. Suppose she doesn’t give us any instructions what follows? Please educate me
LAZ is saying DCE can arrest even if DPP is not going to prosecute. Unnecessary puzzle.
Garlic – Read the whole article again and this time slowly!!
LAZ’s view that provisions of Article 180 of the Constitution (Amendment) Act, 2016 as read with Section 8 of the National Prosecutions Authority Act, 2010, make it clear that the DPP has exclusive powers in “instituting and undertaking criminal prosecutions before any court of law.”
But why did the DPP let this matter go before the court? That office should have pushed it back to DEC to gather more evidence …the whole point here is working together but it seems someone has other plans.
This is a bit wishy-washy. The question is: what constitutes a nolle prosequi? I believe that nolles do not exempt one from future arrest; they are like a can kicked down the road. If this were a full-blown trial whose verdict was conclusive, it would be illegal for the DEC to re-arrest the offender. However, a nolle presents opportunity for other relevant issues to be raised and result in a re-arrest. The DPP should therefore be supportive of such arrest by observing the process anew – or issuing a nolle afresh.
LAZ should have been more clearer by saying re-arresting Milingo by DEC on the same matters on which a nolle had already been entered by the DPP without due consultation was wrong.
It’s not enough to just say the two offices should work together.
What’s the purpose of re-arresting a suspect whom the DPP’s office has declined to prosecute?
In my view, this lady at DEC is overzealous and seems somewhat quarrelsome.
The DPP engaged her office in a confidential manner by writing to her so why couldn’t she do the same and the matter could have been discussed amicably.
Issacher – how can LAZ say that when the constitution has empowered the DPP’s office to do that?
Working together, you mean there should be no boundaries between DCE and DPP. Both should arrest and prosecute.
DPP Suyini should be appointed as a judge of the high court. She clearly exposed herself by sending that letter to the DEC’s office.
She totally ignored the possibility that the DEC could have gathered new evidence to support the re-arrest. What was so difficult for her to confirm this with the DEC .
Sadly, she opted act based on information provided by the accused.
That was a costly mistake.
Circus going in the Zambian system.
Each one wants to show she has more difficult for the two to work together as
One is attached to old system and the
Other with new dawn.
DPP is on sinking sand, Zambians know the relationship between Lilian Shawa Siyuni (DPP) and Milingo Lungu (the acussed). The relationship is well known and its in the news media that makes her position untainable. Resignation is a better option.
Dpp is very compromised, it’s time to step down. She been in that office to protect criminals. It’s time for Zambians to stop being nice to her.
Seems source of confusion @ DEC; precedent once nolle entered no further legal action till …